Attempt

[uh-tempt]

Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself, the actions must go beyond mere preparation.

The essence of the crime of attempt is that the defendant has failed to commit the actus reus (the Latin term for the "guilty act") of the full offense, but has the direct and specific intent to commit that full offense. The normal rule for establishing criminal liability is to prove an actus reus accompanied by a mens rea ("guilty mind") at the relevant time (see concurrence and strict liability offenses as the exception to the rule).

The actus reus of attempted crime

Whether the actus reus of an attempt has occurred is a question of fact for the jury to decide after having heard the judge's instructions regarding the law. The common law precedent is used to distinguish between acts that were merely preparatory and those which were sufficiently proximate or connected to the crime. Anyone who is planning and executing a plan, will always go through a series of steps to arrive at the intended conclusion. Some aspects of the execution of the act will be too remote or removed from the full offense. Examples are watching the intended victim over a period of time to establish the routines and traveling to a store to buy necessary tools and equipment. But the closer to the reality of committing the offense the potential wrongdoer moves, the greater the social danger he or she becomes. This is a critical issue for the police who need to know when they can intervene to avert the threatened harm by arresting the person. This is a difficult policy area. On the one hand, the state wishes to be able to protect its citizens from harm. This requires an arrest at the earliest possible time. But, most states also have a libertarian principle that only those people who actually choose to break the law should be arrested. Since the potential wrongdoer could change his or her mind at any point before the crime is committed, the state should wait until the last possible minute to ensure that the intention is going to be realized.

In English law, the test of proximity was:

that the defendant must have "...crossed the rubicon, burnt his boats, or reached a point of no return".

So the defendant has reached that part of the series of acts, which if not interrupted, frustrated, or abandoned, would inevitably result in the commission of the intended offense. But s1(1) Criminal Attempts Act 1981 defines the actus reus as "...an act which is more than merely preparatory to the commission of the offense" which allowed liability to attach slightly earlier in the sequence of acts. Subsequent ratio decidendi have abandoned the more formal common law last step test, leaving it to the jury to decide. A defendant who changes his or her mind after the act is sufficiently proximate, is still guilty of an attempt although the change of heart could be reflected in the sentencing.

In New York law, the element of actus reus is that person "engages in conduct which tends to effect the commission of such crime. The test this requires either:

an action that reveals a criminal intent, that is, res ipsa loquitur, or "the thing speaks for itself," or
the person has dangerous proximity, or is "dangerously near and close to the accomplishment of the crime."

Under the Model Penal Code, for a defendant to be convicted of attempt requires that he or she perform a "substantial step in a course of conduct planned to culminate in [the defendant']s commission of the crime" (MPC 5.01(1)(c)).

The question of impossibility

See People v. Lee Kong, , State v. Mitchell, United States v. Thomas, James v. United States (2007), Impossibility defense

There is a distinction between "factual impossibility" and "legal impossibility". Factual impossibility is rarely a defense. A standard policing strategy is the use of an agent provocateur to offer temptation to suspected criminals. In some countries, evidence resulting from entrapment is inadmissible. Nevertheless, undercover police officers do sell real or fake contraband such as illegal drugs or guns, as a means of exposing criminal activity. Some consider the use of fake material as a slightly safer way to catch criminals, rather than risk the real contraband falling into the wrong hands. But if there is no actual contraband and the actus reus of the full offense is "possession" of prohibited materials, there can be no criminal possession. Can there be an attempt to possess when, in the circumstances, it was impossible to follow through to commit the full offense? The answer is that mistakes of fact are almost never a defense, as in 'People v. Lee Kong, and State v. Mitchell'', for example

Under English law, s1(2) Criminal Attempts Act 1981 applies the Act even though the facts are such that the commission of the offense is impossible so long as, under s1(3), the defendant believes that he is about to break the law and intends to commit the relevant full offense. This reverses the House of Lords' decision in Haughton v Smith which had held it to be a good defense if the intended crime was factually or legally incapable of fulfillment. This change in the law avoids any problem in an early arrest because, once in police custody, it is impossible to commit the full offense. Further, both the incompetent criminal who fails because the means adopted are inadequate (e.g. intends to poison a victim but the amount administered is harmless, or makes a false statement that does not deceive the intended victim) and the unlucky thief who find the pocket or purse empty, can now be convicted.

The mens rea of attempted crime

Intent is the essence of attempt. Only a direct and specific intent will support a conviction.

Recklessness is not a sufficient mens rea. That means that the defendant must have decided to bring about, so far as lay within his or her powers, the commission of the full offense. However, transferred intent applies so that if "A" intends to murder "B" with a gun, but the shot accidentally misses and kills "C", then "A" is guilty of the murder of "C" and the attempted murder of "B". Alternatively, if "A" intends merely to frighten "B", and that same shot intentionally misses "B" but accidentally kills "C", "A" may be guilty of assaulting "B" (among other things), but not attempted murder, unless "A" intended that such fright would kill "B". Whether A would be guilty of murdering "C" would depend on the specific circumstances and what "A" foresaw. The punishment for an attempt is often tied to that of the intended offense (e.g., half the fine, or half the prison time).

Under English law, R v Walker and Hayles (1990) 90 Cr. App. R. 226 deals with the issue of the power of a court to impute intention based on foresight. The defendants threw their victim from a third floor balcony and were charged with attempted murder. The judge directed the jury that they could infer intention if there was a high degree of probability that the victim would be killed and if the defendants knew "quite well that in doing that there was a high degree of probability" that the victim would be killed. The Court of Appeal did not accept that the reference to "very high degree of probability" was a misdirection, but Lloyd LJ. stated that in the rare cases where an expanded direction is required to include foresight, courts should use virtual certainty as the test, rather than high probability (see also R v Woollin [1998] 3 WLR 382 (HL)). Also note that sometimes even mere intention to commit at an indeterminate time in the future may be criminalize, see grooming a child.

Recklessness will sometimes suffice for 'circumstances' of the crime. To be liable for attempted rape a defendant need not actually intend to have non-consensual intercourse, mere recklessness towards the lack of consent is enough (R v Khan). Likewise with attempted aggravated arson, recklessness towards loss of life will suffice (A-G's Reference #3 1992).

Model Penal Code

Under the Model Penal Code, a defendant is generally guilty of attempt in one of two situations: (1) when it was his or her purpose (i.e. conscious object) to engage in the conduct, or to cause the result, which constitutes the target offense, or (2) when he or she believes that the result implicated in the target offense will occur, even if it was not his or her conscious object to cause that result (MPC §5.01(1)).

The "purpose" (as in situation 1) or "belief" (as in situation 2) required for an attempt do not necessarily encompass the attendant circumstances of the crime. Instead, the defendant must possess as to the attendant circumstances the degree of culpability required to commit the target offense, as specified in the elements of that offense.

No attempt

It is not possible to attempt the other inchoate offenses of conspiracy, or aiding, abetting, counseling or procuring an offense because the defendant would be too remote from the full offense. Similarly, there can be no attempt where the mens rea for the full offense is criminal negligence since, by definition, there is insufficient intention to commit the full offense. Hence, there can be no charge of attempted involuntary manslaughter. It may, however, be possible to prove an attempted omission since all the preparatory steps are presumably commissive in building up to the situation in which the defendant will fail to act.

Abandonment

Abandonment can also be a defense to either element (mens rea or actus reus) of attempt, if the defendant "walks away" from the crime.

However, many jurisdictions do not recognize abandonment. Courts that do recognize this defense generally apply it only where the defendant has completely and voluntarily renounces his or her criminal purpose (Understanding Criminal Law, J. Dressler, 2006). However, the abandonment is not complete and voluntary where the defendant desists from his or her criminal efforts due to unexpected resistance (e.g. from victims), the discovery of the absence of an instrumentality needed for the completion of the offense, or other circumstances that increase the probability of arrest, or decrease the probability of successful completion of the crime (e.g. proximate arrival of police). Abandonment is also invalid where the defendant simply postpones the criminal plan until another time.

Under the Model Penal Code, the defendant is not guilty of an attempt if he or she (1) abandons his or her effort to commit the crime, or prevents the crime from being committed, and (2) his or her behavior manifests a complete and voluntary renunciation of the criminal purpose (MPC § 5.01(4)). However, if renunciation is motivated in whole or part by one of the following, it is not complete:

"a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim"
"circumstances that increase the probability of detection or apprehension," or
circumstances "that make more difficult the accomplishment of the criminal purpose."